Thursday, April 28, 2011

A new lawsuit involving the parish of St. Francis on the Hill in El Paso, Texas was filed on Tuesday, April 26 in the local district court (34th Judicial District). The suit marks another low point in the desultory annals of litigation brought by dioceses of the Episcopal Church (USA) against their former parishes, vestries and rectors. Coming literally on the heels of a final judgment entered in that same court on March 11, which awarded all of the Anglican parish's real and personal property to the Diocese of Rio Grande, the new lawsuit was filed even though that prior judgment has since been appealedto the Eighth Court of Appeals in El Paso.

(The prior proceedings in this tangled lawsuit were well described by the Rev. George Conger in this article. Note that in the new lawsuit, the roles are reversed: the former plaintiffs are the new defendants, and vice versa.)

What is particularly despicable about this latest lawsuit is not just that it seeks to embroil the parties who are appealing the trial court's judgment in brand-new litigation pending that appeal, but it also seeks punitive damages (in addition to other relief) against them. The complaint asks for

exemplary damages in an amount up to the greater of the following: (a) $200,000; or (b) two times the amount of economic damages plus the amount of non-economic damages that do not exceed $750,000

from each of the defendants: the parish of St. Francis itself (a Texas non-profit corporation), its rector, Dr. Felix Orji (recently elected a bishop in CANA), and the three individual trustees of a related non-profit corporation, called the "Foundation for Los Robles Church."

And just what is this egregious conduct that is the occasion for an award of punitive damages? Why those named defendants, you see, had the temerity to continue to operate as a church during the earlier pending lawsuit, and in doing so they collected money, transfered it to various accounts, and otherwise made the money and property no longer available for turnover now to the plaintiffs in accordance with the terms of the March 11 judgment -- which is being appealed.

The very idea!

Perhaps the pleader has even more dastardly conduct in mind, but if so, he does not spell it out. Here are his so-called "factual allegations", taken word-for-word from the new complaint:

17. Some of the Property [ordered to be transferred by the March 2011 judgment] was transferred by St. Francis to Los Robles in the past. Upon information and belief, Los Robles was formed by the Individual Defendants and others associated with St. Francis.

18. Some of the Property has been otherwise dissipated, diverted or expended by St. Francis and the Individual Defendants in ways contrary to applicable canon and other laws, and in contravention of the rights and interest of Plaintiffs.

19. Despite demand, Defendants have refused to return the Property to Plaintiffs. In addition, monies made payable to St. Francis in October 28, 2008 have been diverted and transferred by St. Francis and the Individual Defendants to Los Robles in contravention of rights of Plaintiffs.

And that's it -- that is it. The complaint never gets any more "factual" than that. The rest of its ten-page length, and its 54 repetitive paragraphs, are used for legal boilerplate that charges the parish of St. Francis, its rector, and the Los Robles Foundation trustees with every tort or other actionable claim a first-year law student might be able to think of: (1) conversion; (2) "money had and received"; (3) fraudulent transfers for inadequate value, resulting in St. Francis' "insolvency"; (4) breach of "fiduciary duty" (never mind that the plaintiffs in a law suit are generally not in any kind of fiduciary relationship with the defendants while the lawsuit is going on); (5) breach of the "duty of good faith and fair dealing" (such a duty can arise only out of a contract between two parties, and there was no "contract" between these plaintiffs and these defendants); (6) constructive fraud (i.e., not real fraud, but again arising out of a [nonexistent] "duty"); (7) civil conspiracy (which in California, at least, is not even a separate cause of action, but only a theory of joint liability); and (8) constructive trust (i.e., St. Francis and its rector -- a non-profit entity and its leader -- have somehow unjustly been "enriched" at the plaintiffs' expense).

While such theories of liability are all covered in the first year of most law schools, the case is rare in the extreme in which all of them can be said to apply to the facts at one and the same time. (In nearly forty years of practice, for example, I have never encountered one.) Parties are entitled to plead alternative theories when they are uncertain as to the one on which they believe they might prevail ("The defendant stole the plaintiff's watch, or picked it up where it had dropped in the street, and walked off with it"), but the latest El Paso complaint, with its puffed-up allegations of first-year torts and "civil conspiracy", ought to serve as an example in law schools of how not to put such first-year knowledge to use.

It would be more humorous if it were not so serious, however. Real, hard-earned money is going to have to be devoted to defending against this nonsense. And I note from the complaint that the new Bishop of Rio Grande, the Rt. Rev. Dr. Michael L. Vono, does not even allow his name to appear in the pleading (he is right to be ashamed to do so, if he is in fact so ashamed): throughout the pleading, he is described solely by his title, as in this paragraph:

4. The Bishop of the Diocese of the Rio Grande is a natural person residing in Albuquerque, New Mexico. The Bishop is the ecclesiastical authority of the Diocese.

Something has come seriously unhinged in the Diocese of Rio Grande, and I hope it has nothing to do with the arrival of a new sheriff in town. In researching this article, I came across this story about the earlier lawsuit, while it was pending in 2010:

Two years ago, the parish of St. Francis voted to leave the Episcopal Church, but said it intended to remain right where it was — on the hill overlooking El Paso’s Westside. The parish also changed its name, from St. Francis Episcopal Church to St. Francis Anglican.

And to head off efforts by the denomination to evict them, members took the unusual step of suing the national church and the regional diocese, the Diocese of the Rio Grande, based in Albuquerque, N.M.

Since then St. Francis and the Episcopal Church have been battling it out in the 210th Judicial Court before Judge Gonzalo Garcia.

On Feb. 10, St. Francis Church lost the first round in its legal fight to stay in the church complex on Los Robles Drive when Garcia ruled in favor of the Episcopal denomination and the Rio Grande Diocese.

But St. Francis is in no immediate danger of eviction. The two sides are working out an agreement that would let the St. Francis parish remain in the church property, at least until the conclusion of an appeal to the Texas 8th Circuit Court of Appeals in El Paso.

“We are certainly not going to tell them to move out,” said Canon Colin Kelly, who serves as the president of the Standing Committee of the diocese. The diocese is searching for a new bishop, and the committee makes administrative decisions in the meantime. The diocese expects to elect a new bishop April 24 at a gathering at the cathedral in Albuquerque, N.M.

“At some point we will want to have occupancy, but we are sensitive to their feelings and thoughts,” Kelly said.

"Sensitive to their feelings and thoughts"? Does suing individuals for hundreds of thousands of dollars in punitive damages constitute being "sensitive to them"? It does not -- not in the sense in which most people understand that word. So what happened between early 2010 and early 2011? After all, the Rev. Canon Dr. Colin Kelly is still on the diocesan Standing Committee.

Christians fighting Christians in the secular courts -- I have to say -- set perhaps the worst contemporary example of their faith for the secular culture in which we live. It is bad enough that the bulk of those Christians fighting in the courts today call themselves -- or used to call themselves -- Episcopalians. But when Episcopalians go after the garden-variety, day-to-day acts of practicing the faith by operating a church and paying its bills, and try to make those the equivalent of Bernie Madoff's fraud and deception, we have hit a new low. The Dennis Canon, and the Church which spawned it, are now engaged in what I would call a Satanic embrace.

Whether Episcopal or Anglican, please pray for your Church. At this rate, it may only get worse before it gets better.

Wednesday, April 27, 2011

[UPDATE 05/20/2011: After being continued to May 19 (see below), the hearing held yesterday still did not result in a final order setting the amount of the bond. A press release from Bishop Iker's diocese describes what happened:

Efforts by local Episcopal Church parties were frustrated at several points during today's court hearing, which once again failed to resolve the question of the amount of a supersedeas bond.

Early in the hearing the Hon. John Chupp announced his decision to deny the TEC group's motion to strike four affidavits submitted in support of the Diocese for a $0 bond. With those affidavits remaining in evidence, counsel for the Diocese argued that there are no funds available for a bond, since the court's judgment earlier this year awarded all property in the diocesan Corporation to the local TEC minority.

The only fund available to the Diocese is assessment income for normal operating expenses, and existing law forbids a trial court from setting a supersedeas bond that interferes with the ordinary course of business.

Attorneys for the Episcopal minority group called a forensic accountant as expert witness, but, after cross examination by diocesan counsel and the judge, the witness, who was familiar with bank lending practices, agreed that he was not versed in the peculiarities of supersedeas bonds. He also agreed that the Diocese has no collateral. “How can they get a bond [without collateral]?” the judge asked.

Several times Judge Chupp decried the increasing litigation cost in the case, citing as one example the $24,000 which the forensic accountant confirmed he had charged the plaintiffs for his services.

About 80 minutes after the hearing began, Judge Chupp asked both teams of lawyers to confer together and try to reach an agreement, if they could, on the amount of the bond and related requests for information.

“I'm not negotiating; y'all figure it out,” he said, suggesting that the bond might be set at zero if other terms were agreed on.

When the hearing reconvened about 40 minutes later, attorneys for both sides agreed to work out a proposal and submit it to the court within two weeks. Each side also left a draft order with the judge; If there is no resolution within two weeks, he will sign one of the orders so that the case can proceed. It is anticipated that all this can be done without the necessity of another hearing in the matter.

I find it ironic, to say the least, that the local Episcopalians' take-no-prisoners strategy backfired on them -- the diocese cannot post a money bond, because the ersatz diocese has claimed all its assets, which cannot be touched pending the appeal! The judge was right to make the attorneys work it out under pressure of setting the bond at zero. It is time to stop all the posturing and maneuvering, and get on with the appeal.]

At 2 p.m. tomorrow, April 28, Judge John Chupp will determine to what extent he will permit the local minority group aligned with TEC to conduct discovery with regard to the Motion to Set Supersedeas Bond* that has been filed by our attorneys. We are asking Judge Chupp to permit the Diocese and our 48 congregations to continue to have possession of the property while the case is being appealed, without the necessity of posting a large bond. The local minority group wants to take depositions and conduct other discovery, including inspections of the property, ostensibly for the purpose of developing evidence to support their argument that a substantial bond should be required as a condition for the continued possession of the property by the Diocese and its congregations during the appeal.

According to David Weaver, who is representing our congregations, "Since the plaintiffs likely will not prevail on the bond issue, they are attempting a flanking maneuver by seeking permission from the Court to allow them to engage in expensive discovery procedures."

Please keep the hearing in your prayers, and, if possible, plan to attend. The 141st District Court is located on the fourth floor of the Family Law Center on Weatherford Street in Fort Worth.

----

*A supersedeas bond is a deposit made during an appeal process when the case involves property and the party making the appeal wishes to delay full payment until the process concludes.

[UPDATE 04/28/2011: See Carolyn's second comment below -- thanks for the report, Carolyn!]

The group led by Bishop Ohl has tried every maneuver in the book to push up the costs for Bishop Iker and his diocese. They are not interested in getting the case decided by the Texas Supreme Court as quickly as possible; they want to drag out the proceedings below by having court-ordered "inspections" of each individual church property, and depositions of church rectors and treasurers. Then they want to use any financial information so gathered as a means to argue that Bishop Iker's diocese should have to post a huge bond pending the appeal.

Bishop Iker and his diocese are not going anywhere. Nor are they engaged in running down their properties, or in selling off the altar cloths, or in recycling hymnals and prayer books. Were Bishop Ohl and his group to take over all the properties from this day forward, they would not be able to keep all of them staffed and maintained -- they would immediately have to offer a lot of them for sale, in a difficult market. They are far better off getting the free services of the properties' current occupants to keep them well-run and maintained while the appeal runs its course. Thus it is cynical at best, and harassment at worst, to request that the court drive up the costs of the defendants still more.

One can hope that Judge Chupp is beginning, through all of this extraneous maneuvering, to get the flavor, as we say, of those to whom he awarded the property -- and of where their hearts really lie.

Friday, April 22, 2011

There is far more literature about the date of Jesus' death than there is about his birth. One reason is probably that there is so much more material in the Gospels about his last days. But another reason is also that the three synoptic Gospels disagree markedly with the Gospel of John over the chronology of the Last Supper and the Crucifixion. In the past, scholars simply had to agree to disagree, and to choose the version which they felt agreed best with the conflicting evidence.

Beginning in the last half of the last century, however, there have been a number of fresh approaches to resolving those conflicts. While a blog post is not the place for a critical review of the literature, I shall still try to give an overview of the most recent views and information.

Begin with the one fact one on which all four Gospels agree: Jesus was crucified and died on a Friday, the "day of preparation" before the Jewish sabbath. There was great concern about recovering his body and placing him in a tomb before sundown on the day he died, because of the impending Sabbath when no burials (or anointing of bodies) could take place. And the Gospels also all agree that it was early in the morning "on the first day of the week", i.e., Sunday, when the women hastened to the tomb to be able to complete the proper burial procedures for Jesus, only to find the tomb empty and the body gone.

So we have basic agreement on the three-day sequence of crucifixion, death and entombment on a Friday, everyone resting on the Sabbath, and discovery of the resurrection early Sunday morning. Beyond that simplified chronology, however, the conflicts and difficulties begin -- starting with the Last Supper.

The four Gospels also agree that the final sequence of events began with the Last Supper, followed by Jesus taking the disciples outside, to the Garden of Gethsemane, for prayer and vigil; followed by Jesus' betrayal, arrest, and trials, first before the high priest, then the Sanhedrin, then the first examination by Pontius Pilate, then an interrogation by Herod, and ending with his sentencing by Pilate. The disagreements begin with the nature of the Last Supper -- was it a Passover meal, as Matthew, Mark and Luke all describe it, or was it a meal taken on the eve of the day before Passover, as the Gospel of John takes great pains to make clear?

Resolution of this question interacts with the actual date of the crucifixion, which also has to do with the fixing of Passover in the Hebrew calendar used in the first century. Chapter 12 of Exodus, in verses 1-11, specifies the preparations for and celebration of Passover, always in the first month of the Jewish year. This month, originally called Abib in the Old Testament, had become known as Nisan (from its name in the Babylonian calendar used during exile) by the end of the Old Testament period. Exodus 12:6 requires that the Passover lamb be sacrificed on the 14th day of the first month, to provide the meal (with unleavened bread) for the start of the week-long Passover festival. That meal would take place after sundown on the day of the sacrifice, which was the start of the first day of Passover proper, on Nisan 15. (Although there is some dispute, most scholars agree that in the calendar system used by the Sanhedrin in Jerusalem in the first century, the day began with the first appearance of the stars after sunset, and ended with sunset on the following day.)

It is this unique feature of calculating the days in the Hebrew calendar, and matching those days to our own Julian/Gregorian dates, which causes much of the confusion and disagreement in Easter week chronology. Let us say, for example, that we choose to accept the narrative in the Gospel of John. Then Jesus died on the cross at the same time the Passover lambs were being sacrificed in the Temple -- that is, in the afternoon of Nisan 14. He was buried in Joseph of Arimathea's tomb before sundown on that day. The Sabbath, which began at sundown following the burial, was Nisan 15, and the third day, the day of resurrection, was Nisan 16.

But if the chronology of the synoptic Gospels is accepted, it would appear that Jesus and his disciples enjoyed their Passover meal at the start of Nisan 15 (after sundown on what we would call Thursday), and his trial, crucifixion and burial all took place on that same Jewish day (our Friday), so that the Sabbath was on Nisan 16, and the resurrection on Nisan 17. Thus the calendar sequence -- Thursday, Last Supper; Friday, crucifixion, death and burial; Sunday, resurrection -- remains the same for both accounts in our reckoning. The days in the Jewish calendar are what differ.

Well, you ask, why does it matter? The reason is that the Hebrew (not Julian) date of the crucifixion is crucial in determining the year in which Jesus died. If John is correct, Nisan 14 was on a Friday in that year; but if Matthew, Mark and Luke are correct, it was Nisan 15 that fell on a Friday. The two accounts obviously lead to different years as candidates -- and that has resulted in most of the ink that has been devoted to the controversy.

If we use the dates which Josephus tells us Pontius Pilate served in Judaea, then Jesus had to have died between the years A.D. 26 and A.D. 36. We can narrow this range down further by considering the data which St. Luke gives us. Luke, who as an historian has proved accurate in so many other things, reports that John the Baptist began his ministry in the "fifteenth year of the reign of Tiberius Caesar" (3:1), and that Jesus began his ministry when he was "about thirty years of age" (3:23), after he had been baptized by John. Historians generally agree that Tiberius' fifteenth year, in the regnal system used by Roman historians of the time, began in A.D. 29. If we allow some time between the start of John the Baptist's ministry and the start of Jesus' own, we see that the latter's crucifixion must have occurred in the latter half of the reign of Pontius Pilate, and not in the first half.

Adding 30 years to those dates (and remembering that there is no Year Zero in between 1 B.C. and 1 A.D.), would put the start of Jesus' ministry at the time Luke indicates, sometime after A.D. 29. If we then allow for at least three Passovers (John's Gospel) for the duration of that ministry, the range of probable dates for Jesus' death falls between A.D. 30 at the very earliest, and A.D. 34 at the latest.

This narrows the choices based on Hebrew days considerably. For Nisan 14 fell on a Friday on just two years during that period: in A.D. 30 and again in A.D. 33. (Remember, we are talking about Nisan 14 beginning after sundown the previous Thursday and continuing until sundown Friday evening, after which Nisan 15 would begin.) And -- here is what I consider to be the decisive fact -- Nisan 15 never fell on a Friday in the years A.D. 30 through A.D. 34 (unless one allows for an intercalated month, as the Babylonians -- but not always the Sadducees -- might have done). The last time it fell on a Friday was in A.D. 27, a date which is certainly too early for the crucifixion, for the reasons given above. (And if the Sanhedrin did agree to add an extra month the way the Babylonians probably did in A.D. 34, then Nisan 15 would have also been on a Friday in that year. But there is no evidence of the Sanhedrin ever having been guided in these matters by the Jews who remained in Babylon.)

The upshot of all this calendrical evidence is that there are really only two viable candidate years for Jesus' death during the reign of Pontius Pilate: A.D. 30, when Nisan 14 fell on Friday, April 7, and A.D. 33, when Nisan 14 fell on Friday, April 3. Next we ask: are there any other considerations that would allow us to choose between these two possibilities?

As noted earlier, the date of April 7, 30 A.D. is a little too close to
Luke's data concerning the commencement of the ministries of John the
Baptist and Jesus, respectively, and its duration (according to John) of
at least three years. We would then be using Luke in part to date the
crucifixion, and also relying on John's account of Jesus' ministry
ending on a third Passover, rather than taking literally the other
gospels' accounts, which mention only a single (albeit the final)
Passover. The scales are tipped decisively in favor of A.D. 33,
moreover, by two other undeniable historical facts.

The first is a seemingly remote event in Rome, which might be thought at first to have no connection to Jesus' crucifixion and death. In the last weeks of A.D. 31, Tiberius Caesar first deposed, then allowed to be killed, his tyrannical prime minister and strongman Sejanus, who was (according to Philo and Josephus) vindictively anti-Semitic. It was under his influence that Pontius Pilate committed a number of violent outrages against the Jews in the first years of his rule, as reported by Josephus. But after his death, Tiberius sent word to his governors to treat the Jews with more respect for their customs and ways. Many scholars thus argue that Pilate's vacillation in condemning Jesus was because he did not want to be embarrassed before Tiberius under this new edict, while if the trial had occurred in A.D. 30, while Sejanus was still running things, Pilate would have had no fears whatsoever on that score.

The second consideration is an astronomical one. Given the signs in the skies that attended Jesus' birth, as noted in this earlier post, it is perhaps fitting that on April 3, in A.D. 33, there was a partial lunar eclipse in Jerusalem, when the moon would have taken on a blood-reddish hue. (The eclipse began at 3 in the afternoon, but the moon would still have been below the horizon at that point; by the time it rose several hours later, there is some dispute about how red it would have remained to the naked eye.) Luke (23:44) speaks of "the sun's light having failed" (or, as some ancient manuscripts have it, "the sun was darkened") at the moment of Jesus' death, and perhaps this refers to a faint memory of what was actually a darkening of the moon (there being no way that a solar eclipse could occur on Passover, a night with a full moon).

With the account in John's Gospel thus vindicated, it becomes possible to assert, with some degree of certainty, that Jesus died on the day of preparation for Passover (Nisan 14), on April 3, in A.D. 33. (In the "nothing new under the sun" category, note that Isaac Newton had arrived at this same conclusion -- as his second choice, however -- by 1733.) If one realizes that Nisan 14 ended on that date around 6 P.M. local time, and Nisan 15 then began, it might be possible to reconcile the differences between the chronologies of John and the synoptics if the two were using different calendrical systems, and that is what a number of recent scholars indeed have argued, as Pope Benedict XVI discusses in his recent book. (One even contends that Jesus and his disciples would have been following an ancient pre-exilic calendar, where Passover would have been observed on Wednesday, April 1 in A.D. 33, even though most of Jerusalem would have observed it on Friday, April 3. This allows the Last Supper to have been a true Passover meal, while also adding another whole day for Jesus' arrest and multiple trials.)

The solution which has garnered the largest following is that reached by John P. Meier in his monumental four-volume work, A Marginal Jew: Rethinking the Historical Jesus(Vol. 1, at pp. 399 ff.). He accepts the Johannine account, according to which the Last Supper occurred at the start of Nisan 14, the day of preparation for the Passover. (However, he comes down for Nisan 14 in A.D. 30, based on his having been influenced by the traditional arguments for Jesus' birth in 4 B.C. or earlier.) In his view, Jesus realized that he would not live to celebrate the traditional Passover meal with his disciples, and so used this necessity to inaugurate the new sacrament of Holy Eucharist -- which could explain the remarks in John's narrative about Jesus not partaking of wine or bread again with his disciples "in this world". In describing the meal as a "Passover" one, therefore, the synoptic accounts conflated the old tradition with the new, as Jesus -- being the supreme Paschal lamb -- could well have intended.

Wednesday, April 20, 2011

Word went out yesterday through the Anglican blogosphere that another church had reached a settlement in the Virginia litigation, just six days before the start of the scheduled trial involving originally nine parishes in the Anglican District of Virginia (ADV). This time it was the Church of the Word, in Gainesville, led by its pastor, the Rev. Robin Adams. With this settlement, the number of parishes going to trial next April 25 is down to seven.

It is a good and joyous thing when Christians can manage to settle their disputes out of court, among themselves, as St. Paul so strongly admonished them. However, St. Paul would never have given his sanction to the four settlements reached thus far.

Instead, the abuses of their power by those in control of the Church (and of their puppet dioceses who march to 815's tune), as reflected in the obnoxious and illegal terms exacted from their opponents, should be unanimously condemned, whether by today's Christians or by those in the time of St. Paul. For each of the settlements thus far announced has in common an unusual and highly suspect demand: the settling parish must agree to disaffiliate itself from (or at the minimum, not contribute to) the groups which withdrew from ECUSA, and must agree to remain so disaffiliated (or non-contributing) for a term of up to five years. (In the case of the Church of Our Savior, in Oatlands, the parish agreed to disaffiliate from ADV and remain thus separate for the duration of its continued occupation of its property, which was guaranteed for at least five years. The Church can end the restrictions on thirty days' notice, by abandoning the property and moving elsewhere.)

For the Presiding Bishop and her hand-picked counsellors, requiring the settling churches to dissociate from, or become non-contributors to, their chosen affiliations is just so much more salt to be rubbed into the wounds they have thus far managed to inflict in the bruising litigation they have maintained to date. If they can thereby cause pain and anguish among the dissenters, then that is their dearest wish -- in order to intimidate any who might be tempted to follow in the dissenters' path. And if they can at one and the same time weaken and undermine what they call "the competition", then they deem their despicable marketing model to have been to that extent advanced (as if the very idea of a church being "in the market", or "in competition", made sense of the Gospel).

The pattern of abuse of power so exhibited by 815 and its attorneys should now be unmistakable to readers of this blog. How any member of any local Episcopal church could continue to support or enable such abuses must be a matter of being either ignorant of them, or deliberately misinformed. (All it takes is a word to your church treasurer to keep your donations from being sent to the diocese, which in turn sends a portion of its money to the national Church.)

In the United States, we are proud of many things that have come down to us from our forefathers. Not the least of these things are the law and the traditions embodied in the First Amendment. Consider afresh its forty-five words, while I emphasize in bold italics the part that everyone on the side of 815 seems to have forgotten:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Now to be sure, this is a prohibition upon Congress (and later upon each State, thanks to the construction given to the Fourteenth Amendment by the Supreme Court). It applies to the terms of a private settlement between adversaries in court, however, through what lawyers know as "the law of contracts."

The settlements between ECUSA, its local dioceses (rump or legitimate; the courts are not interested in how they came to be), and the parishes are a form of private contract among the settling parties. A written contract consists of terms of agreement expressed in a writing that is signed by all the parties who are thus agreeing upon something. It is thoroughly a private transaction -- until one of the parties tries to enforce its terms in court.

If the contract is fully performed on both sides and no party has anything to complain about, then all is well and good; the parties move on to other transactions without ever having to involve the courts. But if a party refuses to perform one or more of his promises in the contract, then local courts in each State have jurisdiction to hear the evidence and ultimately decide which party is in the right, and which is in the wrong (and which must either perform as per the original promise, or else pay damages).

However -- and this is a huge qualification on the courts' powers to enforce private contracts -- the First Amendment of the United States Constitution absolutely prohibits any court, State or federal, from enforcing any contract language which would restrict a citizen's free exercise of his or her religion. By long-established court precedent, the First Amendment includes protection not only for individual and collective worship in accordance with one's preferences and beliefs, but also for the freedom to associate with other individuals and groups of one's choosing.

Now you should be able to see the constitutional problem with these so-called "settlements" by parishes with ECUSA and its puppet dioceses. Exploiting their superior bargaining position (because they have the money -- by appropriating trust funds long ago donated to the Church for its "mission" -- to outlast most of their opponents in court), 815 and its attorneys demand that the settling parish agree not only to withdraw from its preferred religious affiliation, but to refrain from associating in any way with it for the next five years.

These so-called "agreements" are modeled on contracts for the sale of a business, in which the owner/seller contracts with his buyer that he will not start up a competing business in the same area within a specified time period, usually no more than three to five years. In that way, the buyer will have a fair chance to realize value from the goodwill built up for the business over the years the seller has owned it, without having to worry about the seller trying to lure away customers on whom the success of the business depends.

But a church is not a commercial business, and to speak of "competition" from another church is fundamentally to misunderstand the Great Commission to spread the good news of the Gospel to all the world. This is why the approach of 815 to these parish-diocese "settlements" is so fundamentally wrong. The Presiding Bishop may well think she, and the Church which she heads, are "in competition" with those who offer the traditional faith to followers, but she could not be more mistaken. The Episcopal Church (USA) as led by the Most Reverend Katharine Jefferts Schori offers nothing that is in competition with traditional churches. She, and they, are blind to that obvious fact, however -- as witnessed by their repeated insistence on constitutionally unenforceable terms of settlement.

In Virginia, the Church of the Word, and the Church of Our Savior, would be fully within their First Amendment rights if they should defy the written terms of their settlement agreements, and re-affiliate with the ADV immediately after signing them, or whenever they so chose. Neither ECUSA nor the Diocese of Virginia could get any State or federal court to enjoin such an affiliation, based upon the written settlement contract. The First Amendment, as I say, absolutely prohibits any State or federal court from enforcing any such blatant restraint on the free exercise of a group's right to associate as it deems fit in the practice of its religion. A party who makes such an illegal bargain will receive no help from the courts in enforcing it.

The Episcopal Church (USA) is acting like the proverbial bully who knows what he can get away with because there is none to challenge him. No one who still calls themselves Episcopalian should countenance such un-Christian behavior, let alone give money for it. Do you want to be identified by a Church which is known only for its lawlessness? Those who remain supportive might ponder these words of Jesus from Matthew, ch. 24:

24:10 Then many will be led into sin, and they will betray one another and hate one another. 24:11 And many false prophets will appear and deceive many, 24:12 and because lawlessness will increase so much, the love of many will grow cold.24:13 But the person who endures to the end will be saved. 24:14 And this gospel of the kingdom will be preached throughout the whole inhabited earth as a testimony to all the nations, and then the end will come.

Monday, April 18, 2011

The political forces in ECUSA are gathering against the proposed Anglican Covenant. They are nevertheless content to bide their time, and see what other provinces will ratify or reject it between now and July 2012, when General Convention next meets in Indianapolis. They do not want to be seen as in the vanguard of the opposition. Rather, they wish to be part of the coup de grace, by finishing it off after it has already been rejected by a majority of the 38 churches in the Communion.

With regard to ECUSA's inevitable decision against the Covenant, I have long predicted such an outcome on this blog; my judgment is thus far unaltered by any subsequent events. But I wish to amplify here upon some of the details of the scurvy power play which is taking place within the previously dignified halls of the Anglican Communion. The power play is occurring because of two things: there is a vacuum of Communion leadership, and at the same time there is no lack of opportunists who are willing to exploit that vacuum to their own ends.

Both of these conditions would have been unthinkable as recently as seventy years ago. As the movie The King's Speech vividly demonstrates, even a mild-mannered stutterer could step forward to lead England when the circumstances required it of him. His example made it possible for others more capable and qualified (such as Churchill and Montgomery) to take the helm and provide England with the character and leadership it needed to pull through the Second World War.

Archbishop Rowan Williams is a special case -- but chiefly an intellectual one. His pastoral genius (which seems to have found its voice only at the Lambeth 2008 Conference) could contribute real substance to the essential dialogue, if England but had other leaders worthy of the name to uphold her traditions. Parliament, however, has all but disestablished the Church, while Prince Charles has signaled that he will no longer head it. Left alone with the responsibilities of the whole Communion, Dr. Williams has failed in his single-minded strategy of keeping all parties at the table at any cost. The Communion is now splintered into a majority of the Global South and a much smaller minority of the liberal West, with assorted smaller factions for bystanders. The minority has deliberately chosen this estrangement, by defying the consensus achieved at Lambeth in 1998 (and by refusing even to acknowledge there was a consensus), but blames it on the majority instead -- and no longer listens to what the majority has to say. The Anglican Communion, in short, has become -- in the space of just sixty years -- the Anglican Divide.

In this schismatic arena, what possible goal could a Covenant achieve? (This is not to deny that there are many earnest voices working to make its passage a reality; see, for example, here and here. And the best analysis of it to be published to date is this brochure, by the Church Times newspaper.) The Windsor Group made the proposal for a Covenant in 2004, but by then (as we now see in hindsight), events had already overtaken its report, and schism was an irrevocable fact on the ground. To propose a Covenant at that point may have been the last hope to recover what once had been, but which was to be no more. Those who had brought the Communion to the point of division were by then too far committed to consider reversing course. There was after all, a solemn "consecration" which had been performed, and having crossed that Rubicon, the liberal activists could no more retreat than could Julius Caesar, in 49 B.C.

But this same irrevocable act has (we now see) also sealed the fate of the Anglican Covenant, and of the Communion itself. To covenant now in any way which could be interpreted to repudiate what has so recently been consecrated (and re-consecrated, in Los Angeles) is too much for the consecrators. And to covenant in any way which could be interpreted to affirm what had been consecrated would undermine the whole point of a covenant, which was to acknowledge agreement on the principles which were thought to have been shared before the Communion-defying consecration took place. Thus the proposal for a covenant was a classic example of trying to shut the barn door after the horses had already escaped.

The process might still have been salvaged if the Communion had been favored with a strong Church of England, under a strong leadership. But the divide in the Communion was mirrored by a divide in the Mother Church, which its recent Archbishops were unable to prevent or heal. Even though the Church of England now seems willing to approve the Covenant, it is a case of too little arriving too late. The barn door was left open; the horses are out.

Nevertheless, there is an unassailable irony here, which this Curmudgeon would fain point out. The Covenant in its current form is unacceptable to those who have rushed to violate the norms of Lambeth -- and please note: I am not arguing that Lambeth norms are mandatory on the entire Communion as such, but only that they are norms, i.e., standards by which one's fidelity to the Communion's shared experience may be objectively measured.

Those who have been in the forefront of departing from the norms, I say, are the ones leading the campaign against the Covenant, for the reasons I have given above. But now please note this supreme irony: those same factions are the ones who control the Covenant amendment and adoption process!

Think about that for a minute. Even were the Global South to make a proposal, as they have recently suggested, to amend the Covenant to provide that only churches which subscribe to Resolution 1.10 may sign the Covenant, such a proposal could go nowhere in the current polity of the Anglican Communion. The Standing Committee is the body assigned to control the Covenant process, and the Standing Committee is overwhelmingly dominated by Western liberals and their factotums.

We thus have a minority frustrating the will of the majority -- which has remained the will of the Communion all along, and has not gone anywhere. But just as they did in New Hampshire in November 2003, and again in Los Angeles in 2010, the minority is telling the majority to go pound sand, while the minority gets on with their important agendas for the Communion. And as they do so, the Archbishop of Canterbury stands by and claims to be powerless to prevent the minority from running things.

Well, maybe Rowan Williams is powerless -- but by now it no longer matters. The old saw about the Communion used to go something like this: "The Africans pray, the Americans pay, and the British make the rules." For a while, perhaps, that compromise may have worked. But now the ones who pay are changing the prayers, while the ones who write the rules have ensured that the structure cannot change from within. And thus I agree with Terry Mattingly's perceptive analysis, written back in September 2007:

… (Like) Orthodoxy, Anglicanism does not have a pope. There is no one person who can settle this issue. Yet they also need to understand that it is the Church of England. This whole crisis is ultimately going to come down to the fact that England — and by that I mean the archbishop of Canterbury and the whole structure of the English church — is going to have to decide whether it will accept the liberal American establishment or the Third World traditionalists.

I don’t think the Third World traditionalists are going to compromise. And I don’t think the American left is going to compromise now on issues of the sexual revolution. They are not going to be willing to offend the New York Times editorial board and other sources of doctrinal power and authority.

So at some point, England is going to have to figure out which way it wants to go. And the Church of England is just as divided as the American church on these issues.

The dithering between opposite poles has now gone on too long; soon there will not even be any choice left to be made. The Anglican Communion, no longer able to dialog meaningfully with the Roman Catholics or the Orthodox, is descending into irrelevance, and is finding smaller and smaller denominations with which it may still celebrate what little remains of its common ground with the world's great faiths. We are coming up on the 500th anniversary of the Protestant Reformation; perhaps it is fitting that such an occasion mark the demise of the Great Experiment with which it began.

Saturday, April 16, 2011

The Fresno Superior Court, which had issued a tentative ruling denying the motion to consolidate nine separate cases against individual San Joaquin parishes into one court, has now adopted that ruling as its final decision on the matter. Pending further moves by the rump diocese and its bishop, the nine cases will continue to remain before the courts of six different counties -- Kern (3 cases), Tuolumne, Fresno, Stanislaus, Tulare (2 cases), and San Joaquin. The rump diocese brought the suits in an attempt to hasten its planned takeover of all of the property and assets of the Anglican Diocese of San Joaquin and its parishes. The strategy thus far, however, has served only to multiply its already stretched litigation budget many times over, and to burden its attorneys with keeping up with motions and status conferences spread all over the southern half of the State. The denial of the motion to consolidate means that, for the time being, at least, the rump diocese and its attorneys will have to lie in the bed they have made for themselves.

The Fresno Court's ruling offered an interesting take on the claims the rump diocese was seeking to advance in their complaints against the individual parishes. It observed:

Plaintiffs claim that the actions are virtually identical. In around December 2007, all named defendants sought to dissociate from the Protestant Episcopal Church. After doing so they continued to occupy and exercise control over real and personal property claimed to be owned by plaintiffs. Plaintiffs contend that “[o]ther than the location of the property at issue and other minor historical facts regarding the incorporation of the defendant parish corporations, there is no variation in the material operative facts of each complaint.” (See Request for Judicial Notice at Exhibits 1, 3, 5, 7, 9, 11, 13, 14, and 16, esp. ¶¶ 66-81.)

This is more or less correct. The 90 paragraph complaints are nearly identical. Plaintiffs are seeking possession of disputed real and personal property on two separate theories. First they allege they are entitled to corporate control of the parish corporations which hold title to and possession of the property. Second, plaintiffs assert the parish property is subject to a trust in their favor.

But then the court noted:

Nowhere in the complaints do plaintiffs ask that legal title be vested anywhere but in the name and control of the “Parish Corporation.”

The gravamen of plaintiffs’ legal position is that parishes cannot “unilaterally” disaffiliate from the Church (Complaints ¶ 24); that the parishes’ attempt to disaffiliate from the Church was ineffectual and none of the individual defendants hold any office or position with the defendant parish (Complaints ¶¶ 77-78); and that under the governing instruments of the “Church and Diocese, Plaintiff Bishop Lamb has designated a Priest-in-Charge of the Parish who has authority to act on behalf of the Parish Corporation. (Id. at ¶ 79.)

However, paragraph 35 of the complaint quotes the text of diocesan Canon XX, section 20(g), which allows parishes to disaffiliate “with the prior written approval of the Ecclesiastical Authority . . . of the Dioceses.” As further stated in the complaint, the “bishop serves as the ‘ecclesiastical authority’ and chief executive officer of a diocese and is in charge of both ecclesiastical and temporal affairs within that diocese.” (Complaints ¶ 19.) In December 2007 the parishes were given approval to disaffiliate by Bishop Schofield. (Complaints ¶¶66-67.) Schofield’s status as the “Episcopal Bishop” at this time is an “ecclesiastical fact” established in the Schofield v. Superior Court opinion and is not subject to further adjudication. (Schofield v. Superior Court (2010) 190 Cal.App.4th 154, 162.)

Thus under the diocesan canons then (and still) in effect, parishes were allowed to disaffiliate from the Episcopal Church (USA) if they received the written permission of the "Ecclesiastical Authority" of the Diocese -- who at the time, as the Court notes, was indisputably none other than Bishop Schofield. The complaints not only set out the text of the disaffiliation canon, but they also recount the events leading up to the withdrawal, including the acts of Bishop Schofield in facilitating and allowing the process to go forward.

How, then, can the rump diocese maintain the claim that the parishes were "without any authority" to withdraw? The Canons of the Diocese have not changed to this day. The rump diocese still allows parishes to disaffiliate "with the prior written approval of the Ecclesiastical Authority . . . of the Diocese" (Canon 20.01 (g), on p. 16 of the document linked). It can thus scarcely argue that its own Canons are unlawful, or unauthorized.

The theory of its complaints, as read by the Court, is that the diocese's local canon may authorize disaffiliation, but its parishes' properties remain impressed with a trust in favor of the national Church. Said the Court:

Plaintiff’s trust theory will depend on analysis of the various Church, Diocese and parish records and documents to determine whether they create a trust in favor of plaintiffs.

The common questions of fact are the happenings in the Diocese that lead to the grant of authority to the parishes to disaffiliate. Much of this appears not to be adjudicatable by the courts per Schofield v. Superior Court, supra, 190 Cal.App.4th 154. Thus, the facts of each matter should be limited the actual disaffiliation procedure in each parish and the examination of the parishes’, Dioceses’ and Church’ governing documents.

Even the Dennis Canon, however, has never been applied so far as to maintain its hold on property sold or transferred by a parish with the permission of the local ecclesiastical authority. For example, in the Good Shepherd case in Binghamton, the Diocese took the property back from the parish when it left ECUSA pursuant to the court's interpretation of the Dennis Canon, but then the Diocese itself sold the property to a Muslim organization. If the Dennis Canon could still be asserted against the property after the sale, how could parish properties ever be declared free and clear of its terms?

There is thus a tension between the rump diocese's theories of the case which remains as yet untested and unresolved. On the one hand, the rump diocese acknowledges that each parish it has sued had "the prior written approval" of Bishop Schofield to disaffiliate, but on the other hand, it claims still to be able to enforce an implied trust on the properties notwithstanding that approval. And yet every month, year in and year out in the Episcopal Church (USA), former parish properties are transferred, sold and disposed of free and clear of the Dennis Canon -- with the written permission of the ecclesiastical authorities of the respective dioceses.

"Since all parties agree that the case will come inevitably before the high court, we hope to save both the time and expense of an intermediate appeal as we seek resolution to the litigation brought against us, which has been so distracting from our mission for the past two years," wrote Bishop Iker to his diocese.

As an additional result of the April 5 order, all discovery in the case is now on hold. The plaintiffs' proposed property inspections will not be carried out. Nor will the judge's Feb. 8 order to surrender our property be enforced during this period: Our congregations will not be evicted from their churches for the duration of this process, if ever.

We give thanks for the opportunity to appeal our case, and we continue to pray for our attorneys as we move on to this very important phase of the litigation.

For further background about the issues on the appeal, readers may consult this post, and this one.

Friday, April 1, 2011

[UPDATE 04/05/2011: Judge Chupp has granted the motion to sever and stay filed by Bishop Iker and his fellow defendants. This puts an end to all the nonsense about discovering accounts and inspecting properties, and freezes the case so that the Court of Appeals can take up the severed part of the case -- the part in which Judge Chupp granted the plaintiffs' motions for summary judgment -- now, rather than later. As noted below, this was a decision that needed to be made in order to prevent chaos and disorder from taking over.]

News is coming in on the various court cases against the dioceses which left ECUSA.

In Pennsylvania, the Commonwealth Court of Appeals issued on March 29 a one-sentence order denying the earlier request filed by Bishop Duncan and his diocese for a rehearing en banc (with the full court, instead of just the three-judge panel which issued the original decision). This leaves the Anglican Diocese of Pittsburgh with only two alternatives: (1) appeal to the Pennsylvania Supreme Court, which need not accept the appeal; or (2) reach a settlement of some kind with the Calvary Church group and the rump diocese.

In Texas, Judge Chupp indicated at the hearing held on March 31 that he wanted to sever from the rest of the case the declaratory relief claims, on which he had granted partial summary judgment in February, and stated: "The appellate court will decide whether [ECUSA] is a hierarchical church or not." Never mind that that is not the controlling issue, assuming Texas courts properly follow the neutral principles approach. The important thing is that the Judge wants to facilitate an early appeal, in order to prevent a lot of wasteful skirmishing that might end up not being necessary.

The local Episcopal parties and congregations of the rump Fort Worth diocese, with apparently a bottomless source of funds for attorneys' fees, are doing their level best to complicate Judge Chupp's life. On the day of the hearing, they filed some 2,000 pages worth of additional pleadings, including their "seventh amended original petition" (how many will it take before they get it right?), and a new motion for partial summary judgment on related issues. They want the judge to rule on their new motion before severing the case. He promised to look at their papers and then issue a ruling shortly. Actually, looking at the foot-high stack of papers, if I were Judge Chupp, I would want to get this case off my desk and up to the Court of Appeals just as quickly as possible:

In California, Judge Simpson of the Fresno County Superior Court issued on March 30 a tentative ruling denying the rump diocese's motion to consolidate in that Court all nine of its pending lawsuits against individual parishes in the Anglican Diocese of San Joaquin, which lawsuits are currently spread among six counties from Stockton to Bakersfield. Counsel for the rump diocese and ECUSA requested oral argument on their motion, which the judge heard late Thursday afternoon. He took the matter under submission, and promised to issue a final ruling shortly. I will have more to say about the motion when the final ruling comes out.

(ENS, Prairie City- April 1, 2011) Kurt Barnes, the treasurer of the Episcopal Church (USA), announced today an innovative method of improving its bottom line, which has been shrinking of late. Named after the Presiding Bishop, who inspired the idea and then challenged him to work out the details, the technique is called "Schoring UP", where the "U" stands for "Unlimited" and the "P" stands for "Permissions".

In a press conference held at 815 Second Avenue, in New York, Barnes gave an illustration of how "Schoring UP" works:

Say that you are a real estate developer, and you have an inner city development project you want to build. However, there is some moral obstacle to its going forward -- perhaps it would involve tearing down an historical building, or eliminating the city's oldest tree, or something like that, something of which everyone familiar with your project strongly disapproves, and tells you you will "rot in hell" if you go forward. You get around that obstacle by submitting an application to my office. The Presiding Bishop's staff will review the application, and present it to her for approval. She issues you a "Certificate of Permission", all duly signed and embossed with a genuine wax seal, which declares that you are permitted to go forward as planned, and that any offenses or sins you might commit in doing so are forgiven in advance. So now you can proceed, without worrying about the consequences for your salvation.

Or say that you want to abandon your elderly parent, who is unfortunately afflicted with Alzheimer's disease, to a nursing home of questionable reputation, but with an affordable monthly fee. You submit your application to my office, pay the required fee, and voila! You have your approval to proceed, again without any worries about your ultimate salvation.

We call it "Schoring UP" because Bishop Schori literally shores you up, so to speak, in your eternal accounts so that you will not have to fear condemnation. At the same time, of course, the anticipated fees which applicants will pay should go a long way to shoring up the finances of the Domestic and Foreign Missionary Society, which is the corporate arm of the Episcopal Church.

Asked how much the fees are, Barnes replied:

The amount is established by your application -- that's why it goes to my office first. When I was on holiday last year in Germany, I by chance came across this old volume which used to be in the library of Johann Tetzel, who sold indulgences for Pope Leo X. It lists every mortal and venial sin or offense known to man, and shows the fee he charged for forgiving it. I commissioned a translation, along with an updating of the amounts to today's dollars, when after I told the Presiding Bishop about my discovery, she suggested I find a way to put it to the Church's good use. "Schoring UP" is the result, and I am very proud to have played my part in it. We expect to be able to retire our $60 million line of credit in absolutely no time. We began with a test program here in New York, and just the applications from the members of Trinity Wall Street alone have already brought in over fifteen million dollars! Needless to say, we have high expectations, but I believe strongly they will be met, or even surpassed.

"Is there anything the Presiding Bishop will not forgive?" a reporter asked. Barnes replied:

If there is, we haven't run into it yet. Of course, the contents of the applications are all confidential, but I can tell you there have been some doozies, about which not even I was sure, and so I doubled the calculated fee, which was already pretty steep. But once the fee was paid, the application sailed through. I can tell you one applicant's name, I think, without violating any confidence -- it was a Mr. Bernard Madoff. That was when we were running the pilot program, however, and while we weren't able to help Mr. Madoff with the criminal authorities, we made sure that his heavenly accounts were squared.

When another reporter noted that Barnes had referred to the infamous papal indulgences, the sale of which started the Protestant Reformation, and asked how what the Episcopal Church was doing was any different, Barnes admitted there was little practical difference. Then he went on:

We are not doing anything new here, it is true. But it is also true that we are not the only church doing this. The Catholic Church, for example, still issues indulgences today. They say you can't "buy" them, because the Pope outlawed the selling of indulgences in 1567, I think it was. But you can "earn" them through an appropriate "charitable contribution" -- which is no different from how we are doing it. So we have the papal imprimatur, as it were. It's just that we all agreed here that the word "indulgence" came with too much baggage attached. Neva Rae Fox came up with the idea of "Schoring UP", which we all thought was brilliant. So that's what we decided to go with.

And unlike the Catholic Church, we don't limit you to one indulgence -- or as we call it, permission -- per day! Remember, it's "unlimited permissions". You will find application forms at the rear of the room -- please take some and spread them around. We haven't implemented it yet, but we are talking about a commission program. We know it worked to get St. Peter's basilica built, and we just have to work out the legal details. Chancellor Beers has assigned a special legal team to it, and we should have another announcement shortly.

And with that, saying that he had to get back to his desk to deal with some newly arrived applications, he thanked us and ended the press conference.

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